Volume 112

Taming Dangerousness

by Shima Baradaran Baughman

In every courtroom across the country each day, judges determine whether thousands of individuals are either released or held before trial. These speedy and seemingly minor decisions have profound impacts on an accused’s fate and on national incarceration rates. Indeed, over the last fifty years, these individual decisions have led to a 400% increase in pretrial detention in the United States. This increase in pretrial detention accounts for 99% of the jail growth in the last fifteen years, despite record decreases in arrest and crime rates. At the same time, the United States has witnessed three meaningful periods of bail reform in the 1960s, the 1980s, and beginning of the 2010s. Despite the hundreds of statutory iterations attempting to improve pretrial reform, these three bail reform movements have collectively failed to improve pretrial detention rates, and new legislation is making matters worse.

This Article argues that bail reform efforts and most of the scholarly literature have focused on dangerousness—or perceived government obligations to protect public safety—to the exclusion of explicating the key underlying rights to pretrial liberty. The scholarship on bail has neglected a rigorous focus on the underlying constitutional rights that dictate release. In failing to focus on liberty, the trend of pretrial commentary has inadvertently presumed detention as a default due to the supposed risk of danger posed by the accused. It has failed to remind judges of the meaningful constitutional protections they are obligated to provide defendants in this early pretrial period. In reality, the interests of pretrial liberty and public safety do not conflict. Neglecting pretrial liberty rights has in fact led to the increased likelihood of crime and negative downstream effects on individuals and entire communities. This Article recognizes and articulates a unique right to pretrial liberty. It asserts that at the root of contemporary judicial failure to protect constitutional rights is a lack of recognition of the precise individual rights recognized in this early pretrial period, leaving judges to overemphasize concerns about dangerousness of the accused. It seeks to remedy this deficiency by articulating four distinct constitutional rights that create a near universal right of pretrial liberty: the rights to due process, equal protection, counsel, and protection from excessive bail. It argues that in any given case the right to liberty is characteristically invoked to protect one of these complementary interests: the presumption of release; the right to prepare a vigorous defense; a prohibition of judicial fact-finding before trial; and the right to financial parity. The upshot is not a mechanical algorithm for producing correct criminal justice outcomes, but an illumination of the constitutional stakes at issue in any given pre-trial determination. This Article aims to shift the focus of courts from the prevailing unfounded obsession with dangerousness to a deeper understanding of the doctrinal stakes underlying liberty.

Continue reading Taming Dangerousness.